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Death Penalty: Let the prosecutor decide

June 2, 2003

I am not morally opposed to capital punishment. I believe that some crimes are so repugnant that the death penalty is the only appropriate response. During my nine years as a federal prosecutor, I worked on prosecutions in which the U.S. Department of Justice (DOJ) sought the death penalty, including one (United States v. Timothy McVeigh) that resulted in the execution of the defendant.

But the way that the DOJ currently administers the federal death penalty is dangerously shortsighted. This system gives bureaucrats in Washington the responsibility for deciding whether to seek or forego the death penalty in every case in which a death-eligible offense is charged, or in every case in which such a charge could conceivably be brought. In principle, this ensures consistency across districts, so that someone committing a drug-related murder in Texas is no more or less likely to face the death penalty than someone who commits the same crime in New York.

In practice, by adding an extra layer of bureaucracy to every federal murder case, the system ensures inefficiency, limiting the number of cases each U.S. attorney's office can investigate and prosecute and, perversely, making the streets less safe. Worse yet, the current administration has begun to routinely ignore the recommendations of local prosecutors when he or she believes that the death penalty is inappropriate for a particular case. As a result, Attorney General John Ashcroft now increasingly compels the government to seek execution of defendants whom the individual prosecutorΓÇöthe government official most familiar with the facts of the caseΓÇöfeels should not be subject to the death penalty.

Intensive supervision by Washington is understandable for cases in which the individual assistant U.S. attorney prosecuting the case, or even the local U.S. attorney, wants to seek the death penalty. The decision to seek the death penalty is the most profound decision a public official can make, and should be made only after extensive deliberation and consideration of all the other options. But the same is not true for cases which the local prosecutor does not believe are appropriate for the death penalty. In many jurisdictions, particularly in the Northeast, these comprise the overwhelming majority of death-eligible cases. In more and more of them, the attorney general has been rejecting the local U.S. attorney's recommendation not to seek the death penalty. To many federal prosecutors, it appears that the presumption now in the DOJ is to seek the death penalty, and that exceptional circumstances are required to avoid it, rather than vice versa.

Dilution of symbolic power

This is a bad idea on many levels. First, it actually dilutes the symbolic power of the federal government's decision to seek the death penalty. The federal death penalty should be used sparingly, reserved for crimes that are so despicable that there is no other sanction that adequately expresses society's abhorrence.

On a more practical level, many of Ashcroft's recent death penalty decisions have actually weakened federal law enforcement. In some of these cases, local prosecutors have been compelled to seek death against defendants who were willing to plead guilty to lengthy terms of imprisonment, including life sentences. For a federal prosecutor, the strength, or weakness, of the evidence against a particular defendant invariably plays an important role in the decision whether to seek the death penalty. In cases without overwhelming evidence, society is often better protected by the assurance of a lengthy prison term than by the chance to put someone to death if the government is successful at trial. Even in cases with strong evidence, the vagaries of the jury system mean that conviction is never a foregone conclusion, and an acquittal in a death-eligible case could lead to the release of a dangerous criminal.

Even more damaging to federal law enforcement was Ashcroft's decision earlier this year to reject the recommendation of the U.S. attorney for the Eastern District of New York not to seek death against a defendant who was willing to plead guilty and cooperate with the government against other murderers. This decision has had an immediate and profound impact on the ability of federal prosecutors to investigate and prosecute violent crimes, which virtually always involves the use of one or more cooperating witnesses. However, few defense attorneys will now recommend that their clients cooperate when they may face execution nonetheless. The prosecution of violent gangs using federal statutes, resources and sentences is one reason that many New York City neighborhoods are safer than they were 10 years ago. But after the attorney general's decision, the pool of potential cooperating witnesses in these cases all but evaporated.

The idea of the attorney general and distant bureaucrats substituting their own judgment for that of local federal prosecutors is deeply unsettling. It is the individual assistant U.S. attorney, after all, who is most familiar with the facts of the case and who will ultimately be trying the case. And, following a conviction, it is the individual assistant U.S. attorney who must stand before a jury and explain why a life sentence without the possibility of release is simply an inadequate punishment for that particular crime.

One of the most important weapons in a prosecutor's arsenal is his conviction that he is doing what is right. When a federal prosecutor is first sworn in, he is told that his job is to seek justice, not to get convictions or to achieve harsh sentences. With the current system for evaluating death-eligible cases, we risk robbing prosecutors of this weapon and depriving ourselves of an important tool in the struggle against violent crime.

This article is reprinted with permission from the June 2, 2003, issue of The National Law Journal. 2003 ALM Properties Inc. Further duplication without permission is prohibited. All rights reserved.